INCITING CRIMES EG. INCITING VIOLENCE

The offence of inciting a crime, usually in the context of violence (such as riot or affray – see: http://www.sydney-criminal-lawyer.com.au/law-articles/affray), is an offence of primary liability (as opposed to derivative or accessorial liability). The purpose of the offence is to criminalise behaviour that urges or encourages others to commit a crime, before the crime takes place. The offence of inciting a crime is still a common law offence however, it has also been legislated in the Crimes Prevention Act 1916 (NSW) (‘the Act’) and s11.4 of the Criminal Code 1995 (Cth). The Act is extremely brief and is set out below in its entirety – the legislation was initially enacted to deal with civil and industrial unrest during World War I[1]. It should also be noted that there are specific offences within the Crimes Act 1900 that also include ‘inciting’ as an element of the offence eg. murder (s26), suicide (s31C) and sexual assaults (s80G). There is also a specific offence of inciting serious racial vilification – see s20D of the Anti-Discrimination Act 1977 set out below.

The offence of inciting another to commit a crime is established even if the communication/incitement is directed at the world at large hence, there need not be a specific or intended audience eg. banners or posts in newspapers or websites[2]. Further, the incitement need not be acted upon for the offence to be committed – the offence is complete upon the incitement reaching the audience. The mens rea for the offence is that the offender intends that the audience or person incited will carry out the offence incited[3]. A person may also be found guilty of inciting an offence even if committing the offence incited is impossible – see s11.4(3) Criminal Code 1995 (Cth).

As for penalties – at common law the penalty is at large. Under Commonwealth Legislation the penalty is tiered depending upon the penalty of the offence incited eg. for offences that carry life imprisonment the penalty for inciting such offences, carries 10 years imprisonment. In NSW, if an offence is dealt with under the Act - it is a summary offence with a maximum penalty of six months imprisonment (see ss 2 and 4).

If any person incites to, urges, aids, or encourages the commission of crimes or the carrying on of any operations for or by the commission of crimes that person shall be guilty of an offence against this Act.

3 Printing or publishing writing inciting to crimes

If any person prints or publishes any writing which incites to, urges, aids, or encourages the commission of crimes or the carrying on of any operations for or by the commission of crimes, such person shall be guilty of an offence against this Act, and shall be liable to imprisonment for any term not exceeding six months or to a penalty not exceeding 1 penalty unit.

4 Penalty for offences

If any person is guilty of an offence against this Act for which a penalty is not otherwise provided that person shall be liable on summary conviction before the Local Court to imprisonment for any term not exceeding six months.

5 Where offence punishable otherwise

Where an offence against this Act is also punishable under any other Act or at common law, it may be prosecuted and punished either under this Act or under the other Act or at common law, but so that no person be punished twice for the same offence.

(1) A person shall not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group by means which include:

(a) threatening physical harm towards, or towards any property of, the person or group of persons, or

(b) inciting others to threaten physical harm towards, or towards any property of, the person or group of persons.

Maximum penalty:

In the case of an individual-50 penalty units or imprisonment for 6 months, or both.

In the case of a corporation-100 penalty units.

(2) A person shall not be prosecuted for an offence under this section unless the Attorney General has consented to the prosecution.